Judge Randolph M. Hammock, Case Number: 23STCV25748, Date: 2024-08-23 Tentative Ruling

Judge: Randolph M. Hammock, Case: 23STCV25748, Date: 2024-08-23 Tentative Ruling

Plaintiffs Michael Wang and Jared Rothman allege that Defendants Todd O’Gara, Michael O’Gara, Wanu Water, Inc., and Ryco Partners, LLC, committed fraud by falsely representing that they would invest in Plaintiffs’ business endeavors, and by misrepresenting their supposed wealth. Plaintiffs allege they passed on other investment opportunities in reliance on Defendants’ representations.

On April 22, 2024, this court DENIED Defendants’ motion to quash service for lack of personal jurisdiction as to Defendant Todd O’Gara, and GRANTED the motion as to Defendants Michael O’Gara and Wanu Water, Inc. (See 04/22/2024 Ruling.)

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

Defendants’ opposition to the motion for reconsideration was due on July 11, 2024. (See CCP § 1005(b) [“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days…before the hearing.”

Plaintiffs argue Defendants’ opposition to the motion for reconsideration was untimely because it was not received via email service until Friday, July 12, 2024, at 12:04 AM. In other words, service was 5 minutes late. Plaintiffs also assert Defense counsel filed a perjurious proof of service indicating service occurred minutes before midnight on the July 11, when in fact, service did not occur until after midnight the next day. Despite recognizing that the opposition was “technically served only a few minutes late,” Plaintiffs contend they were somehow prejudiced by the late service and therefore, the court should disregard the opposition. (Reply 5: 1-2.)

Now that the guffaws have subsided, this Court rejects such an absurd and hyper-technical argument. Simply put: Because Plaintiffs cannot demonstrate any legitimate and actual prejudice from this five minute late filing, the court exercises its discretion to consider the “untimely” opposition to the extent it was, in fact, untimely.

In granting Michael O’Gara and Wamu Water’s motion to quash, Plaintiffs argue the Court “(1) made factual findings not supported by evidence in the record; (2) made observations about Plaintiffs’ Opposition that were quantifiably untrue; and (3) misapplied the law of specific jurisdiction by seemingly focusing on the volume of contacts as part of the analysis.” (Mtn. for Reconsideration, p. 6: 8-10.) Plaintiffs also assert that that “new or different facts [or] circumstances” exist to reconsider the prior order, namely, that in the “period of time since Plaintiffs filed their Opposition, Defendants have taken specific actions to destroy, alter, or otherwise spoliate key jurisdictional evidence.” (Mtn. 6: 11-12; CCP § 1008(a).)

Later in the motion, Plaintiffs take issue with the Court’s Ruling as it pertains to Michael and Wanu, asserting that this Court’s analysis was “short and conclusory” and “without any meaningful engagement with either the evidence or the law of personal jurisdiction.” (Opp. 9: 3-4.) Plaintiffs also contend they were “deprived of their right to be heard” at the hearing. (Mtn. 8: 16.)

To be frank, it would seem that arguments that this Court somehow made mistakes, ignored evidence, failed to adequately explain its decision, or otherwise failed to give the Plaintiff a “fair hearing,” is likely not sufficient grounds for a motion for reconsideration, under CCP § 1008 (a). An aggrieved party is certainly free to seek any appellate remedies which may be available, as opposed to filing a motion for reconsideration based upon the fact that the result was incorrect, from the Plaintiff’s standpoint.

Moreover, it is not appropriate to simply contend that the trial court made a mistake, since it didn’t pay attention, ignored the evidence and/or pleadings, and engaged in an incorrect and specious analysis. This is borderline contemptuous behavior on behalf of Plaintiff’s counsel. See, e.g., Business & Professions Code § 6068 (a) and (b). Insulting the trial court, either directly or by implication, is typically not a preferred or effective persuasive technique. Counsel should act accordingly and choose his/her words more carefully in the future.

Be that as it may, this Court does, in fact, treat every motion seriously, and will attempt to address the issues and arguments that are appropriately before this Court on the pending motion for reconsideration.

First, Plaintiffs assert that Plaintiff Michael Wang received a notification via iMessages informing him that Todd removed a “heart” reaction from a text message Wang had sent Todd. (Wang Decl. ¶ 2.)

The November 22, 2022, subject text message sent from Plaintiff Wang to Todd stated: “Warriors call tentatively scheduled tomorrow at 4:30pm ET/1:3pm PT. Will provide details when confirmed. [¶] Already have multiple parties that want the entire thing. Crazy…vanity purchase.” (Wang Decl. ¶ 2, Exh. A.) Plaintiff attests that “Warriors” refers to the Golden State Warriors, a California-based team that Plaintiff says Defendant Todd “made multiple efforts to initiate conversations with me about investing.” (Wang Decl. ¶ 5.)

Todd apparently “hearted” the iMessage. This remained for some time, until April 14, 2024, when Plaintiff received an iMessage notification informing him that Todd had “removed” the heart from the text message. (Id. ¶ 2.) Plaintiff attests that a notification of this type typically occurs “either because (1) the other person removed a reaction such as a ‘heart,’ or (2) the other person deleted the message altogether.” (Id. ¶ 3.) Therefore, Plaintiff attests that “[t]his series of events leads [him] to believe that Todd is attempting to destroy evidence relevant to [his] case.” (Id. ¶ 4.)

In his declaration opposing the motion, Defendant Todd states that that he “accidentally removed a heart emoji from” the text while he “was trying to take a screenshot of that text message.” (Todd O’Gara Decl. ¶ 4.) He maintains that he “was fully aware that all communications, correspondence, text messages, [and] emails between [him] and Mr. Wang and Mr. Rothman needed to be reserved and maintained.” (Id.)

Plaintiffs argue that the “altered or spoliated a text message regarding the O’Gara family’s desire to invest in a California sports team” is relevant for reconsideration because Defendant Michael purportedly “made multiple efforts to initiate conversations with [Plaintiff Wang] about investing in the Golden State Warriors.” (Wang Decl. ¶ 5.) Michael did this, Plaintiff asserts, with knowledge that Wang was a California resident. (Id.)

Second, Plaintiffs assert that “at some point between when Plaintiff filed their Opposition and the present, Defendants altered the content of Wanu’s website to remove information indicating Wanu was based in California.” (Mtn. 10: 10-12.) As of April 4, 2024, Wanu’s “Frequently Asked Questions” page indicated that “Wanu is produced in sunny Southern California; Orange County, to be exact!” (Wang Decl. ISO Opp’n to Mot. Quash ¶ 26, Exh. F; Alfera Decl., Exh. B.) However, as of May 2, 2024, that language from the website’s FAQ has been completely omitted. (Alfera Decl., Exh. C.)

To this evidence, Todd O’Gara responds that one of Wanu’s vendors, Glambia, maintained a production facility in Corona, CA, where Glambia “bottle[d] and package[d]” the Wanu product. (Todd O’Gara Decl. ¶ 3.) However, Glambia “went out of business in 2023,” which “necessitated that Wanu find another co-packer.” (Id.) Accordingly, Wanu “could no longer represent on the Company’s website that Wanu was produced in sunny southern California and thus, Wanu’s website needed to be updated for compliance purposes regarding representations that were made on Wanu’s website.” (Id.) Todd attests there “was absolutely nothing nefarious about Wanu updating its website so as to make honest representations to its customers.” (Id.)

Defendant Michael is Todd’s father and a Nevada resident. In the Court’s ruling on the motion to quash, the court concluded that the text message Michael sent to Todd, purporting to establish purporting to demonstrate the legitimacy of a large family inheritance, “would have been a message from Nevada to Texas.” (Ruling, p. 6, § 2.) This was based on evidence presented by Defendants that they were residents of Nevada and Texas. (See Decl. of Todd O’Gara in Reply to Motion to Quash, ¶ 1; Decl. of Michael O’Gara in Reply to Motion to Quash, ¶ 1.) This court went on to find that “Michael’s lone visit to California does not relate to the claims in the Complaint” and that his strongest ties to California “are those formulated by his son, Defendant Todd.” (Id.) The court concluded that the “scant facts,” standing alone, were “insufficient to establish personal jurisdiction over Defendant Michael. (Id.)

First, Plaintiffs argue the court “erred in making factual findings regarding the locations of the sender and recipient of the Inheritance Text Message.” (Mtn. 12: 24-25.) They assert “there is nothing in the record demonstrating or suggesting that, on or shortly before March 17, 2023, Michael O’Gara was a resident of or present in Nevada, or that Todd O’Gara was a resident of or present in Texas.” (Mtn. 13: 10-12.) In any event, Plaintiffs assert this is irrelevant to the analysis. The determinative factor is “simply that the older and younger O’Gara conspired with one another to defraud Michael Wang, and at the time they did so, Michael O’Gara knew Michael Wang lived in California.” (Id. at 13: 16-18.)

The court made this determination based on the fact that it was Plaintiffs who—as the ones opposing the motion to quash—"had the initial burden to prove, by a preponderance of the evidence, facts establishing purposeful availment and a substantial connection between the defendant's forum contacts and the plaintiff's claim.” (Anglo Irish Bank Corp., PLC, supra, 165 Cal. App. 4th at 980.) The court made this determination based on its review of the evidence presented. Upon another review of the evidence, in addition to any new evidence presented in the motion for reconsideration, the court comes to the same conclusion.

Plaintiffs then assert that the court should have allowed the case against Michael to proceed because the jurisdictional issues are inextricably bound to the merits of the case. The California authority Plaintiffs rely on, cited in their opposition to the motion to quash, involved a plaintiff’s standing in a civil forfeiture action. (See People v. Superior Ct. (Plascencia) (2002) 103 Cal. App. 4th 409, 416.) That Court, in concluding that the trial court correctly found the determination of disputed facts over standing was a question for the jury and not the court, relied on federal authorities holding that “when a jurisdictional issue turns upon disputed facts intertwined with the merits of the case, the court should not resolve the factual dispute prior to trial but should employ a summary judgment standard.” (Id.)

Plaintiffs, however, have not demonstrated with any binding California authority that the same rule applies to the issue of personal jurisdiction in a case not involving civil forfeiture. The court therefore will not apply that rule here.

In its Ruling on the motion to quash, this court recognized the existence of evidence that Defendant Todd, founder of Wanu, “visited California on multiple occasions to solicit investments for Wanu.” (Id. ¶ 6.) The court continued, however, by stating that “Plaintiffs [had] not identified any authority holding that the solicitation of investments from a California resident, standing alone, is sufficient to invoke personal jurisdiction.” (Ruling, p. 6, § 3.)

In the motion for reconsideration, Plaintiffs contend the court erred in this statement, and point to a section of their opposition to the motion to quash where they raised Anglo Irish Bank Corp., PLC v. Sup. Ct. (2008) 165 Cal.App.4th 969, 985. (See Ps’ Opposition to Motion to Quash, 13: 1-7.)

This Court regrets that it did, in fact, miss the case citation in its initial analysis of the motion, therefore erring in stating that Plaintiffs had not cited any authority to that effect. However, Plaintiffs’ single sentence and accompanying parenthetical lacked meaningful analysis or any discussion of the facts in Anglo. (See Ps’ Opp. to Mtn. to Quash, p. 13: 1-7.) The court addresses the case now and finds it distinguishable.

In Anglo, California investors filed suit against Isle of Man Bank, Isle of Man trust company, their officers, and their Irish parent bank fraud and related claims. (Id. at 975.) The trial court denied the defendants’ motions to quash, and the Court of Appeal affirmed. In that case, Directors of the foreign companies, Davies and Connolly, “jointly met with 10 or 11 potential clients in California in March 2000, 9 or 10 of whom decided to invest through the trust company. Their business cards handed out at the meetings bore a logo for ‘Anglo Irish Bank.’ Davies's card identified him as managing director of the trust company. Connolly's card identified him as ‘Head of Offshore Trust Operations’ for the Irish bank. Mike McGee, who was then managing director of the Isle of Man bank, also met with several potential investors in California a few months later.” (Id.)

Davies and Connolly met with Plaintiffs, the Brars, at their home in California in March 2020 in efforts to obtain their investments. (Id. at 975-976.) The Brars did ultimately invest and suffered “substantial losses.” (Id. at 976.) Davies also “visited California again in November 2000 to attend conferences in Los Angeles and San Francisco on the subject of asset protection,” and then “again in May 2001 to meet with investment advisors and at least one potential investor regarding leveraged ‘with profit bonds’.” (Id.)

By this conduct, the Court of Appeal held that the parties had purposely directed their activities at California by causing a separate person or entity to engage in forum contacts. (Id. at 983.) Particularly, “Davies, Connolly, and McGee visited California for the purpose of engaging in economic activity with California residents… [and] they succeeded in garnering millions of dollars in investments from California residents.” (Id. at 984.) In doing so, the “individuals acted not only on behalf of their employers, the Isle of Man bank and the trust company, but also on behalf of the Irish bank.” (Id.) Therefore, the Court concluded that the petitioners “purposefully derived benefit from their activities in California and deliberately engaged in significant activities within this state, and that they therefore purposefully availed themselves of forum benefits.” (Id.)

The court went on to determine there existed a “substantial connection” between the dispute and the defendant’s forum activities. (Id. at 985.) The court found such a connection existed, because the allegations in the complaint were “based on alleged misrepresentations in or omissions from statements made to them in California by Davies, Connolly, and others in an effort to solicit business from California residents.” (Id.) Based on the circumstances, the Court concluded that the exercise of personal jurisdiction would be fair and reasonable. (Id.)

Turning to the instant case, Plaintiffs contend in their motion for reconsideration that because the “visits that Todd made to California to conduct business for Wanu were visits in Todd’s official capacity with Wanu,” then they are sufficient to provide jurisdiction over Wanu. (Mtn. 16: 8-10.)

In its opposition to the motion to quash, Plaintiffs identified instances where Defendant Todd O’Gara, on behalf of Wanu, solicited investments in Wanu. Plaintiffs assert these occurred during a dinner on January 24, 2023 in West Hollywood (Rothman Decl. in Opposition to Motion to Quash ¶¶ 7-8; Wang Decl. in Opposition to Motion to Quash ¶¶ 18–19); during two rounds of golf at Lakeside Golf Club in Burbank (Wang Decl. in Opp. ¶¶ 21, 23); and during a meeting with Dominique Appleby at the Beverly Hilton. (Id. ¶ 22.)

Clearly, as evidenced by Anglo, where an entity targets the forum through its agents to obtain investments, that may be sufficient to confer personal jurisdiction. (Anglo, supra, 165 Cal.App.4th at 985.) The question is whether the evidence in this case established this.

The facts here are distinguishable from Anglo, which involved visits by multiple individuals on behalf of the entities attempting to solicit the investments, which did, in fact, result in “millions” in investments. Indeed, the sole purpose of the meetings was to obtain investments from California residents.

In this case, however, Todd O’Gara denies that his visits to California were made to made obtain investors in Wanu. (Todd O’Gara Decl. in Reply to Motion to Quash ¶ 10.) Appleby ultimately did not invest any money in Wanu. (Wang Decl. in Opp. to Motion to Quash ¶ 22). It is unclear if the West Hollywood dinner or golf outings resulted in any investments in Wanu.

Thus, Defendant Wanu’s purposeful availment to California does not reach the level of that in Anglo, and the court again concludes that Plaintiffs have not met their burden to establish personal jurisdiction over Defendant Wanu.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.